Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the eighth Meeting of the Parties of the Agreement on the Conservation of African-Eurasian Migratory Waterbirds with regard to certain amendments to Annex 3 to the Agreement
Date: 2021-07-27
Institutions: Directorate-General for Environment, European Commission
Subjects: United Kingdom, bird, environmental cooperation, multilateral agreement, protection of animal life, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 27.7.2021  COM(2021) 426 final 2021/0243 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the eighth Meeting of the Parties of the Agreement on the Conservation of African-Eurasian Migratory Waterbirds with regard to certain amendments to Annex 3 to the Agreement  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
at the eighth meeting of the Parties of the Agreement on the Conservation of African-Eurasian 
Migratory  Waterbirds  (AEWA)  in  connection  with  the  envisaged  adoption  of  certain 
amendments to its Annex 3. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Agreement on the Conservation of African-Eurasian Migratory Waterbirds 

The  Agreement  on  the  Conservation  of  African-Eurasian  Migratory  Waterbirds  (AEWA)  is 
dedicated to the conservation of migratory waterbirds and their habitats across Africa, Europe, 
the Middle East, Central Asia, Greenland and the Canadian Archipelago. 

Developed  under  the  framework  of  the  Convention  on  Migratory  Species  (CMS)  and 
administered  by  the  United  Nations  Environment  Programme  (UNEP),  AEWA  brings 
together  countries  and  the  wider  international  conservation  community  in  an  effort  to 
establish coordinated conservation and management of migratory waterbirds throughout their 
entire migratory range. 

The Agreement entered into force on 1 November 1999. The European Union is a Contracting 
Party to this Agreement since 1 October 20051. At present, there are eighty-two Contracting 
Parties, forty-four from Eurasia (including the EU) and thirty-eight from Africa. Twenty-four 
EU Member States are parties to the Agreement2. 
Directive  2009/147/EC  on  the  conservation  of  wild  birds  (Birds  Directive)3  implements  in 
Union  law  the  commitments  set  out  in  the  Agreement.  The  Birds  Directive  relates  to  the 
conservation  of  all  species  of  naturally  occurring  birds  in  the  wild  state  in  the  European 
territory  of  the  Member  States  to  which  the  Treaty  applies.  It  covers  the  protection  and 
conservation of these species and lays down rules for their exploitation. 

2.2. 

The Meeting of the Parties 

The Meeting of the Parties (MOP) is the principal decision-making body for the Agreement. It 
has  powers  to  review  the  Annexes  to  the  Agreement  and  it  meets  every  three  years.  Each 
Party has one vote, but regional economic integration organizations, like the European Union, 
exercise their right to vote with a number of votes equal to the number of their Member States 
which are Parties to the Agreement. Any amendment to an Annex shall be adopted by a two-
thirds majority of the Parties present at the meeting.  

The Eighth Meeting of the Parties of the Agreement will take place on 5-8 October 2021, in 
Hungary. 

1  Council Decision 2006/871/EC of 18 July 2005 on the conclusion on behalf of the European Community of the 

Agreement on the Conservation of African-Eurasian Migratory Waterbirds. OJ L 345, 8.12.2006, p. 24. 

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3  OJ 

Three Member States are not Parties to the Agreement: Austria, Malta, and Poland. 
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26.01.2010. 

L 20 

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p. 

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lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:020:0007:0025:EN:PDF. 

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2.3. 

The envisaged act of the Meeting of the Parties 

On  5-8  October  2021,  during  its  eighth  meeting,  the  Meeting  of  the  Parties  is  to  adopt  the 
Resolution  8.xx on the adoption of amendments  to  the AEWA Annexes  in  accordance with 
Article X, paragraph 5, of the Agreement (‘the envisaged act’). 

The purpose of the envisaged act is to amend Annex 3 (Action Plan) to the Agreement. While 
Annex 2 comprises the list of migratory waterbirds to which the Agreement applies, Annex 3 
specifies actions, which the Parties shall undertake in relation to priority species. The priority 
species are listed in Table 1 of Annex 3 according to certain criteria set out in the same Table. 

Article II of the Agreement provides: ‘Parties shall take co-ordinated measures to maintain 
migratory waterbird species in a favourable conservation status or to restore them to such a 
status.  To  this  end,  they  shall  apply  within  the  limits  of  their  national  jurisdiction  the 
measures prescribed in Article III, together with the specific actions determined in the Action 
Plan provided for in Article IV, of this Agreement’.  

The  envisaged  act  will  enter  into  force  for  all  Parties  and  become  binding  on  them  on  the 
ninetieth day after the date of its adoption by the Meeting of the Parties, except for Parties that 
have  entered  a  reservation.  During  the  ninety-day  period,  any  Party  may,  by  written 
notification to the Depositary, enter a reservation with respect to an amendment to an Annex.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The proposed position to be taken on the European Union’s behalf is to support the envisaged 
act at the eighth Meeting of the Parties. 

The amendments to Table 1 of Annex 3 contained in the envisaged act were proposed by the 
United  Kingdom,  based  on  the  recommendations  by  the  AEWA  Technical  Committee  and 
consist of: 

(1) 

(2) 

(3) 

Creating and adding a new (f) category for populations of species listed in category 3 
of Column A and category 2 of Column B of Table 1 in Annex 3 to the Agreement, 
when  data  for  them  is  deficient,  for  example  when  no  information  is  available  on 
trend direction; 

Marking  categorisations  in  Table  1  based  on  statistically  uncertain  trend  and 
unknown population size with “()” and 

Changing the categories of populations following the evidence gathered as part of the 
8th edition of the AEWA Conservation Status Report.  

The  proposed  amendments  presented  in  points  (1)  and  (2)  above  are  based  on  the 
precautionary principle, as they will ensure the lack of information on the population trend is 
carefully  taken  into  account  in  the  listing  of  the  populations  and  therefore  in  achieving  a 
higher degree of protection, when necessary. These amendments will be approved on behalf 
of  the  European  Union  by  the  Commission,  in  line  with  Article  3(1)  and  3(3)  of  Council 
Decision  2006/871/EC  of  18 July 2005  on  the  conclusion  on  behalf  of  the  European 
Community of the Agreement on the Conservation of African-Eurasian Migratory Waterbirds. 

With respect of the proposed amendments under point (3) above, these consist of changes in 
listings for a number of species and their populations. Out of these proposed amendments to 
Annex 3 to the Agreement, the change in the listing of five populations of four species does 
not conform to the relevant EU legislation (Birds Directive). These amendments foresee:  

– 

a change from Column B1 to Column A3 of Table 1 for: 

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two populations (the Iceland/UK & Ireland and the Black Sea & Turkey) of the 
Greylag Goose (Anser anser)  

the  Black  Sea  &  East  Mediterranean  population  of  the  Red-crested  Pochard 
(Netta rufina) 

the  Central  and  East  Siberia/South-west  Asia  East  &  Southern  Africa 
population of the Grey Plover (Pluvialis squatarola squatarola).  

– 

a change from Criterion 4 in Column A to Criterion (3c) within Column A of Table 1 
for  the  South-east  Europe  &  West  Asia/South-west  Asia  &  North-east  Africa 
population of the Eurasian Oystercatcher (Haematopus ostralegus longipes). 

These  foreseen  changes  for  the  five  populations  of  four  species  mean  that  no  more  hunting 
would be allowed under the Agreement, although they  are huntable species under the  Birds 
Directive since they are listed in Annex II, Part b of the Birds Directive. These amendments 
will thus require stronger legal protection than required under EU law.  

If the proposed changes were accompanied by an asterisk “*”, this would indicate that hunting 
of the species could continue on a sustainable use basis within the context of an international 
action  plan  implementing  the  principles  of  adaptive  harvest  management.  Therefore,  the 
European  Union  reservation  with  regard  to  this  population  could  be  lifted  once  an  adaptive 
harvest management mechanism under an international body, consistent with the requirements 
of Article 7 of the Birds Directive, is in place. However, an asterisk “*” accompanies none of 
the proposed amendments.  

All of the proposed amendments shall be approved on behalf of the European Union pursuant 
to article 218.9 TFUE. However, in line with Article 3(4) of Council Decision 2006/871/EC 
of  18 July 2005,  the  Commission  shall  enter  a  reservation  with  regard  to  the  proposed 
amendments  concerning  the  above  mentioned  five  populations  of  four  species,  as  it  did  for 
amendments  with  similar  effects  at  the  previous  Meetings  of  the  Parties,  since  they  would 
require an amendment to the Birds Directive, which is not possible within ninety days of the 
date of their adoption by the Meeting of the Parties. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’4. 

4.1.2.  Application to the present case 

The Meeting of the Parties is a body set up by an agreement, namely the  Agreement on the 
Conservation of African-Eurasian Migratory Waterbirds. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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The  act  which  the  Meeting  of  the  Parties  is  called  upon  to  adopt  constitutes  an  act  having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  and  is  capable  of 
decisively influencing the content of European Union legislation, namely, the Birds Directive. 
This  is  because  some  actions,  in  particular  as  regards  hunting,  which  the  Parties  shall 
undertake in relation to priority species listed in Table 1 of Annex 3 of the Agreement are not 
always compatible with what the Birds Directive provides for the same species. Namely, if a 
species listed in Annex II of the Birds Directive becomes no more huntable under AEWA, an 
amendment  of  the  Birds  Directive  would  be  required.Under  Article  3  of  Council  Decision 
2006/871/EC of 18 July 2005 on the conclusion on behalf of the European Community of the 
Agreement on the Conservation of African-Eurasian Migratory Waterbirds, as regards matters 
falling within Community competence, the Commission is authorised to approve, on behalf of 
the  Community,  amendments  to  the  Annexes  to  the  Agreement  adopted  in  accordance  with 
Article X(5)  of  the  Agreement.  However,  this  authorization  is  limited  to  those  amendments 
that are consistent with, and do not entail any modification of, Community legislation on the 
conservation of wild birds and their natural habitats. 

Since  the  proposed  amendments  to  Table  1  of  Annex  3  of  the  Agreement  concerning  the 
following four species: Greylag Goose (Anser anser), the Red-crested Pochard (Netta rufina), 
the  Grey  Plover  (Pluvialis  squatarola  squatarola)  and 
the  Eurasian  Oystercatcher 
(Haematopus  ostralegus  longipes)  would  require  an  amendment  to  the  Birds  Directive,  a 
Council  decision  is  needed  to  establish  the  position  to  be  taken  on  behalf  of  the  European 
Union in the eighth Meeting of the Parties of the Agreement in that respect5.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to environment. 

Therefore, the substantive legal basis of the proposed decision is 192(1) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with 
Article 218(9) TFEU. 

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For  amendments  that  would  not  require  an  amendment  to  the  Birds  Directive,  the  Commission  may 
approve them in accordance with Council decision 2006/871/EC of 18 July 2005.   

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5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  envisaged  act  of  the  Agreement  on  the  Conservation  of  African-Eurasian  Migratory 
Waterbirds will amend its Annex 3, it is appropriate to publish it in the Official Journal of the 
European Union after its adoption. 

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2021/0243 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the eighth Meeting of the 
Parties of the Agreement on the Conservation of African-Eurasian Migratory 
Waterbirds with regard to certain amendments to Annex 3 to the Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Agreement  on  the  Conservation  of  African-Eurasian  Migratory  Waterbirds  (‘the 
Agreement’) entered into force on 1 November 1999 and was approved on behalf of 
the European Community by Council Decision 2006/871/EC6. 

Pursuant to Article X, paragraph 5, of the Agreement, the Meeting of the Parties may 
adopt amendments to Annexes of the Agreement.  

The  Eighth  Meeting  of  the  Parties,  on  5-8  October  2021,  is  expected  to  adopt  a 
Resolution on the adoption of amendments to Annex 3 to the Agreement.   

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Meeting of the Parties, as the Resolution will be binding on the Union and capable of 
decisively influencing the content of Union law, namely the Birds Directive. 

The  proposed  amendments  to  Annex  3  to  the  Agreement  submitted  by  the  United 
Kingdom  and  set  out  in  the  draft  Resolution  8.xx  concerning  the  following  four 
species: the Greylag Goose (Anser anser), the Red-crested Pochard (Netta rufina), the 
Grey  Plover  (Pluvialis  squatarola  squatarola)  and  the  Eurasian  Oystercatcher 
(Haematopus  ostralegus  longipes),  which  are  not  in  line  with  the  relevant  EU 
legislation  (Birds  Directive),  should  be  approved  on  behalf  of  the  European  Union, 
since  they  contribute  to  achieving  a  higher  degree  of  protection  of  these  species 
populations that are in decline. However, in accordance with Article 3(4) of Council 
Decision  2006/871/EC  of  18 July 2005,  the  Commission  should  enter  a  reservation 
with regard to the proposed amendments concerning the above four species, since they 
would  require  an  amendment  to  the  Birds  Directive,  which  is  not  possible  within 
ninety days of the date of their adoption by the Meeting of the Parties. 

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  at  the  eighth  meeting  of  the  Parties  to  the 
Agreement shall be the following: 

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OJ L345, 8.12.2006, p. 24 

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The amendments to Annex 3 to the Agreement submitted by the United Kingdom and set out 
in the draft Resolution 8.xx of the eighth Meeting of the Parties to the Agreement concerning 
the following four species: the Greylag Goose (Anser anser), the Red-crested Pochard (Netta 
rufina),  the  Grey  Plover  (Pluvialis  squatarola  squatarola)  and  the  Eurasian  Oystercatcher 
(Haematopus ostralegus longipes), will be approved at  the  eighth  Meeting of the Parties on 
behalf of the European Union. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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